Judge
Justice N. Sohlberg:
- The opinion of my colleague President A. Hayut is exhaustive. Her reasoned position regarding the additional criminal hearing 4072/21 is acceptable to me, her conclusion is correct, and so on. With regard to the additional criminal hearing 1062/21, I accept most of her words, in accordance with my position in the judgment that is the subject of the additional hearing, except for an important matter, in which my colleague did not see the state of affairs eye to eye. As far as I am concerned, the light hand of 'rummaging' telephones during an interrogation, a repeated failure in conducting such illegal searches, requires us to keep our waists; if not, I am afraid that "what was is what will be, and what is done is what will be done" (Ecclesiastes 1:9).
- The mobile phone in the present era is the apple of the eye of its owner. Intrusion into the telephone entails a severe and real violation of privacy. There are good reasons to justify a discussion of the defects that occurred in the investigative proceeding, already at the stage of the hearing of the application for a warrant to penetrate the telephone. The main reason is that the violation of the fairness of the proceeding is taking place here and now (I discussed this at length in the judgment that is the subject of the additional hearing); however, there is an applicative procedural difficulty in this regard. Therefore, in my opinion, it would be correct to distinguish between two situations: one - the factual situation with regard to the illegality, and with regard to its connection to the application for the order to penetrate the telephone - clear and clear; the second - the picture of the situation is missing and requires further demand and investigation.
- In situations where the illegality and its connection to the request for an intrusion order are clear in law, and do not require additional in-depth evidentiary clarification, including interrogations of witnesses and those involved, and which requires a broader evidentiary picture, the court will understand the defect that occurred and its impact on the application, already during its hearing. In these circumstances, the court may reject the request for an intrusion order, if and when it is found that the application is based on an illegal basis, and decides that in the overall balance, the right to a fair trial should be preferred over other considerations and interests.
- On the other hand, in situations in which the court hearing the application for an injunction is of the opinion that the picture before it regarding the defect that occurred is incomplete, vague and partial, and at the same time the legal grounds justifying the issuance of the intrusion order exist, the hearing of the defect and its implications for the main proceeding will be postponed. There, the court will have the best tools at its disposal, and it will be able to properly balance all the considerations and interests at stake. Needless to say, in these circumstances, an order to penetrate computer material that is issued at a preliminary stage will not qualify defects and failures that occurred prior to its granting. The suspect has the right to attack the admissibility of the evidence obtained by means of the intrusion order in the main proceeding, if and when an indictment is filed against him.
- and to be precise. In those situations in which it is determined that there is a factual ambiguity that necessitates postponing the hearing of the defect that occurred and its significance to the main proceeding, the postponed examination will focus on the legality and validity of the order to penetrate the computer material itself, and will not be limited to clarifying only the admissibility of the evidence produced by virtue of it. The court will step into the shoes of the judge who heard the application for an order to penetrate computer material, and re-examine whether, in light of the defect that was discovered, it was correct to issue the order in the first place.
- I will not elaborate here on the reasons and the methods of implementation, all of which are detailed in the judgment that is the subject of further discussion (see there: Miscellaneous Criminal Applications 1758/20 Yonatan Urich v. State of Israel [published in Nevo] (January 26,2021)). The state of affairs in the 'field' needs to be corrected, because mishaps in such a way are a breached vision. We are aware of this every now and then.
- The matter before us illustrates the difficulties involved in 'judicial legislation'. Hearings were usually held in the Magistrate's Court, the District Court, and the Supreme Court, and so on; and after all, I doubt whether we have come to rest and inheritance. The issue is complex, it involves conflicting interests and considerations; a gap between what is desirable and what is available; between halacha and the possibility of realizing it in practical life; it is necessary to regulate the provisions by explicit and clear legislation. Unfortunately, however, as described there in paragraphs 25-27 of my judgment, the relevant bill of 2014 (following the conclusions of a committee headed by Justice D. Levin from 1996) is laid as a stone that has not been reversed for many years and has not been advanced; Since it was not enacted, we were forced to decide, according to the best of our judgment.
- As stated, I concur with the position of my colleague President E. Hayut regarding the additional criminal hearing 4072/21; regarding the additional criminal hearing 1062/21, I agree, subject to the aforesaid.